LAJJA BAI Vs. RAJAMANI

JUDGEMENT

(1.) The plaintiff is the appellant. She filed the suit for a declaration of her title to the suit property and also for recovery of possession of the same after the removal of the superstructure standing thereon put up by the defendant. She also prayed in the plaint for a permanent injunction restraining the defendant from further putting up constructions on several grounds which I need not dilate. The trial Court decreed the suit in so far as the declaration sought for by the plaintiff with respect to the suit property as per the Commissioner's plan Ex.C-2 is concerned and in other respects the suit was dismissed. Aggrieved by the judgment and decree of the trial Court, the plaintiff preferred A.S.No.190 of 1981 before the District Judge, Tiruchi-rapalli. At a time when the appeal was taken up by the learned District Judge, the plaintiff/appellant herein did not appear and the Counsel appearing for the appellant had reported no instructions with the result, the lower Appellate Court observed that the appellant was called absent and thereafter, the lower Appellate Court dismissed the appeal by going into the merits of the case. I find from the judgment of the lower Appellate Court that the learned District Judge has framed points for consideration for the disposal of the appeal and on each point, after discussion, the learned Judge has given a finding and has thus dismissed the appeal. Against the dismissal of the above appeal, the plaintiff/appellant herein has filed the above second appeal.

(2.) The second appeal was admitted and the substantial question of law that was framed was "whether the lower Appellate court could dispose of the appeal on merits when the appellant was absent""

(3.) Learned Counsel Mr. M.V.Krishnan appearing for the appellant relies on Order 41, rule 17, Civil Procedure Code, and contends that on the day when the hearing of the appeal was fixed, if the appellant, does not appear, the Court may make an order that the appeal be dismissed. There is a further Explanation to rule 17 of Order 41, Civil Procedure Code, that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. It is contended by the learned Counsel for the appellant that if the lower Appellate Court has dismissed the appeal of the appellant for default, he would have taken out a petition before the Appellate court to restore the appeal and to set aside the order of the lower Appellate Court. But in this case, the learned District Judge has gone into the merits of the case with the result a decree was passed wherein the rights of the parties are declared by the dismissal of the appeal. It is this that has led the appellant to file the above second appeal.